Michael O’Higgins: Knee-jerk reaction to bail laws following garda killing

The news that Adrian Crevan Mackin, the man who shot dead Garda Anthony Golden, was on bail facing a charge of IRA membership has angered many people.

Inherent in this stance is a self-evident belief that it is simply wrong that a person charged with a serious criminal offence should remain at liberty pending trial.

The question of whether a person ought to be admitted to bail pending trial involves balancing conflicting interests. There is a duty and obligation to protect the public. Both the Constitution and the provisions of the European Convention on Human Rights recognise the importance of the presumption of innocence, and restrict the extent to which the right to bail can be limited. But in this politically emotive atmosphere it is vital that the public are fully informed.

I once participated in a radio debate about whether bail laws were too lax. It was the same issue. A person who was granted bail on an assault charge had gone on to murder someone.

The idea that he was at large and thus in a position to murder someone was greeted with a sense of outrage. This case, it was said, was a perfect illustration of the need to deny people bail when they were already charged with an offence involving violence.

It was almost as if the court, or the legal system that had permitted this, had in some way facilitated the homicide through its own gross negligence.

I only discovered afterwards that the individual concerned had been acquitted of the assault charge. Most people would readily accept that remanding a person into custody for a lengthy period on a charge of which he is actually innocent is unjust.

However, I have no doubt had this inconvenient fact been pointed out during the debate it would have had no effect. The mood was such that it would have been deemed perfectly appropriate to lock up a person actually innocent of the offence as some form of preventative detention.

Presumption of innocence

The mere charging of an individual with a crime does not amount to proof of any wrongdoing. Aligned to the presumption of innocence is a corresponding presumption in favour of granting bail.

Bail will be refused if it is demonstrated that the accused is a flight risk or will intimidate witnesses. It will also be refused if a court is satisfied that there is a risk that a person will commit offences while on bail.

In determining the issue a court must look at the seriousness of the offence charged, the offence it is apprehended the accused may commit if given bail, previous convictions, any charges pending and whether the accused has committed offences while previously on bail.

The belief of a chief superintendent that refusal of bail is necessary to prevent the commission of a serious offence is admissible as evidence.

It is for the State to object to bail if it has concerns that an accused may commit offences while on bail, intimidate witnesses or not turn up for trial. In the light of previous experience, the first thing I did on being asked to write this piece was to check what had happened in this case.

The State consented to bail.

Presumably this was a decision that was not taken lightly.

Central to it would have been a full assessment of the risk that Crevan Mackin might commit further offences.

The fact that he was before the Special Criminal Court, charged with IRA membership means that there would have been access to up-to-date intelligence.

Implicit in much of the comment over the last few days is that the granting of bail amounts to a systems failure. The mere juxtaposition of the words charged with a serious offence and bail was enough to make it obvious that this was so. But how could the Special Criminal Court have refused bail on the grounds Crevan Mackin might commit further offences when there was no evidence put before it to this effect? Any such decision would have been perverse.

One wonders how many commentators in recent days were aware that the State had not opposed bail? They would surely realise that their anger was misdirected and that the issues were more complex than presented.

It does happen that a person is granted bail and then commits a serious offence. However, in considering a bail application a court must decide whether there is a correlation between the charge before the court and the apprehension that new offences will be committed on bail.

Thus, there may be a readily identifiable risk that a drug addict, stealing to support a habit, may continue to steal if released on bail and the existing law enables a court to refuse bail for that reason.

Domestic dispute

However, who could have conceived there was a risk that a person charged with membership of an unlawful organisation would shoot his partner and a member of An

Garda Síochána

, before turning the gun on himself, arising out of a domestic dispute?

Glib slogans on this issue do an injustice to the tragic death of Garda Golden as much as they overlook the central issues involved. Bail applications must be considered in accordance with legal principles and the available information put before the judge.

Human nature is not always foreseeable or predictable and judges, as much as anybody else, can only determine applications on the available evidence before them.

Ignoring these inconvenient facts in the debate on bail laws does no service to the administration of justice or the desire to protect the public from repeat offenders. Michael O’Higgins is a senior counsel